Citation Nr: 9906294
Decision Date: 03/08/99 Archive Date: 03/18/99
DOCKET NO. 97-04 796 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Mainelli, Associate Counsel
INTRODUCTION
The veteran, who died in March 1992, served on active duty
from August 1943 to December 1945.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an October 1995 rating decision, in which the
Montgomery, Alabama, Regional Office (RO) of the Department
of Veterans Affairs (VA) denied service connection for the
cause of the veteran's death.
FINDINGS OF FACT
1. The veteran died on March [redacted], 1992, due to amyloid
heart disease with contributory causes of amyloidosis and multiple
myeloma.
2. During the veteran's lifetime, service connection was not
in effect for any disability.
3. The veteran was not exposed to ionizing radiation during
active duty service.
4. Amyloid heart disease, amyloidosis, and multiple myeloma
were first shown many years after service, and the appellant
has presented no competent medical evidence linking the
causes of the veteran's death to active service or to a
service connected disability.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran's death is not well grounded, and there is no further
statutory duty to assist the appellant in developing facts
pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In making a claim for service connection, the appellant has
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is,
"a plausible claim, one which is meritorious on its own or
capable of substantiation." Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). The kind of evidence needed to make a claim
well grounded depends upon the types of issues presented by
the claim. Grottveitt v. Brown, 5 Vet.App. 91 (1993). For
some factual issues, competent lay evidence may be
sufficient; however, where the claim involves issues of
medical fact, such as medical causation or diagnosis,
competent medical evidence is required. Id.
The appellant contends that the causes of the veteran's
death, classified as amyloid heart disease as a consequence
of amyloidosis and gammopathy on his death certificate and
diagnosed as amyloidosis as a consequence of multiple myeloma
by his attending physicians, stemmed from his in- service
exposure to ionizing radiation. She contends that her
husband was exposed to ionizing radiation during his
participation in the occupation of Hiroshima and Nagasaki
following the detonation of atomic bombs in both of those
cities.
The veteran died on March [redacted], 1992, with the immediate
cause of death, as noted on his Death Certificate, identified
as amyloid heart disease due to (or as a consequence of)
amyloidosis due to (or as a consequence of) gammopathy. In a
letter dated in May 1992, J. Bradley Cavender, M.D., one of
the veteran's attending physicians, indicated that the
veteran's amyloidosis was a consequence, or manifestation, of
underlying multiple myeloma.
In order to establish service connection for cause of death,
the evidence of record must show that a disability incurred
or aggravated by service either caused or contributed
substantially or materially to cause death. 38 U.S.C.A. §
1310 (West 1991); 38 C.F.R. § 3.312 (1998). The service-
connected disability will be considered as the principal
cause of death when such disability, singly or jointly with
another condition, was the immediate or underlying cause of
death or was etiologically related thereto. 38 C.F.R. §
3.312(b) (1998). To be considered a contributory cause of
death, it must be shown that the service- connected
disability contributed substantially or materially; that it
combined to cause death; or that it aided or lent assistance
to the production of death. 38 C.F.R. § 3.312(c) (1998). It
is not sufficient to show that the service- connected
disability casually shared in producing death, rather a
causal connection must be shown. Id.
Hospital admission cards obtained from the Office of the
Surgeon General of the Department of the Army reveal that the
veteran received in- service treatment for a knee infection,
a foot sprain, excision of a verruca vulgaris (wart) on the
heel, acute nasopharyngitis, dermatophytosis, infectious
hepatitis (catarrhal jaundice) and food poisoning or
intestinal infection. A service department record reveals
his arrival in the Philippine Islands on March 26, 1945, his
departure from Yokohama on November 18, 1945 and his arrival
in Seattle, Washington on November 29, 1945. Service medical
records are unavailable as they have presumably been
destroyed in the 1973 fire at the National Personnel Records
Center in St. Louis. However, as indicated below, it is
clear from the record that the disease processes which
contributed to the veteran's death were not manifested until
many years after his separation from service. During his
lifetime, service connection was not in effect for any
disability.
Treatment records from Eliza Coffee Memorial Hospital reveal
that diagnosis of plasma cell myeloma, confirmed by bone
marrow aspiration, was first made in May of 1990. In April
1991, he was diagnosed with hypertensive cardiovascular
disease with congestive heart failure (CHF) and chronic
obstructive pulmonary disease (COPD). His monoclonal
gammopathy (plasma cell disorder) was classified as benign.
A history of previous renal disease and type IV
hyperlipidemia was noted. Decompensated CHF and symptoms of
prostatism developed in July 1991. Thereafter, he developed
and/or was treated for generalized tonic clonic seizure,
pneumonia, respiratory tract infections, pleural effusions,
ventricular tachycardia, severe esophagitis and chronic ulcer
disease. In December 1991, he was undergoing chemotherapy
for his immunobulin G lambda multiple myeloma. In March
1992, he was admitted on an inpatient basis at Eliza Coffee
Memorial Hospital due to end stage amyloid heart disease with
CHF and decompensation, IgG lambda multiple myeloma, severe
esophagitis, previous acid peptic disease with duodenal
scarring and recent left lower lung pneumonitis. He died on
March [redacted], 1992.
In a letter dated May 19, 1997, Anthony J. Kalliath, M.D.,
the veteran's hematologist/oncologist, reported that the
veteran's amyloid involvement of the heart was a complication
of his multiple myeloma. Dr. Kalliath had been told of the
veteran's participation in the occupation of Japan
immediately after the nuclear bomb was dropped, and he was of
the opinion that it was least as likely as not that the
veteran's multiple myeloma could have been due to his
radiation exposure in the military.
In a similar letter dated in May 1997, Dr. Cavender reported
that he had been informed of the veteran's history of
exposure to radiation during his period of active service.
He was of the opinion that this radiation exposure could have
been a contributing factor in the veteran's development of
multiple myeloma and amyloid heart disease.
In a letter dated in December 1997, the Defense Special
Weapons Agency reported that they had reviewed the veteran's
unit morning reports from his arrival in Japan through his
departure to the United States. Army morning reports
revealed that, on September 9, 1945, the veteran arrived with
his unit, the "K" company, 182nd Infantry Regiment, at
Yokohama, Honshu, Japan aboard the USS CLAY (APA 39) from the
Philippine Islands. He remained with his unit in the
vicinity of Yokohama, Honshu, Japan, which was approximately
550 miles from Nagasaki and 400 miles from Hiroshima, until
November 18, 1945 at which time the unit departed for
transfer to the United States.
Service connection based upon exposure to ionizing radiation
can be awarded on three different legal bases. Service
connection may be established under the provisions of
38 C.F.R. § 3.309(d), 38 C.F.R. § 3.311, or on the basis of
direct, or in certain cases presumptive, service connection.
See Rocker v. Brown, 10 Vet. App. 67, 71 (1997). First,
there are 15 types of cancer which are presumptively service
connected under 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d).
Multiple myeloma, which was a contributing factor in the
cause of the veteran's death, is specifically listed as a
disease related to exposure to radiation under 38 C.F.R.
§ 3.309(d)(2)(ix). Additionally, such disease, as a form of
cancer, may be deemed a radiogenic disease under the recently
amended provisions of 38 C.F.R. § 3.311. 63 Fed. Reg. 50993-
50995 (1998)(to be codified at 38 C.F.R.
§ 3.311(b)(2)(xxiv)).
However, in order for the disease process of multiple myeloma
to be presumed service connected under 38 C.F.R. §§ 3.309, it
must first be shown that the veteran was a "radiation
exposed veteran" as defined under VA laws and regulations.
38 C.F.R. § 3.309(3)(i) (1998). It has been contended that
the veteran was exposed to ionizing radiation during the
occupation of Hiroshima and Nagasaki following the detonation
of an atomic bomb in each of those cities. However, service
records, and research conducted by the Defense Special
Weapons Agency, do not record the veteran's presence within a
10 mile radius of the city limits of either city during the
relevant time periods in question. See 38 C.F.R.
§ 3.309(d)(3)(vi) (1998). In fact, the Defense Special
Weapons Agency places the veteran no closer than
approximately 550 miles from Nagasaki and 400 miles from
Hiroshima. This being the case, he cannot be said to have
been a participant in the American occupation of Hiroshima or
Nagasaki, Japan, and, hence, cannot obtain presumptive
service connection under 38 C.F.R. § 3.311. Since the record
does not show that the veteran participated in the occupation
of Hiroshima and Nagasaki, and as it is not contended that
the veteran was exposed to ionizing radiation on any other
basis, the veteran's multiple myeloma cannot be presumptively
service- connected under either 38 C.F.R. §§ 3.309(d) or
3.311.
Notwithstanding the fact that the foregoing presumption is
not applicable in the present case, the United States Court
of Appeals for the Federal Circuit has held that specific VA
regulations which provide for presumptive service connection
do not preclude a veteran from establishing service
connection with proof of actual, direct causation. See
Combee v. Brown, 34 F.3d 1039, 1040 (1995). As stated above,
the appellant is entitled to service connection for the cause
of the veteran's death if she can establish that a disability
incurred or aggravated by service, as defined by the general
laws and regulations governing VA compensation entitlement,
either caused or contributed substantially or materially to
cause death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R.
§ 3.312 (1998).
Service connection for the cause of death of a veteran
requires medical evidence, or in certain circumstances lay
evidence, of in- service occurrence or aggravation of a
disease or injury, and medical evidence of a nexus between
the in- service injury or disease and the cause of death.
Ruiz v. Gober, 10 Vet.App. 352, 356 (1997); see also Caluza
v. Brown, 7 Vet.App. 498 (1995); 38 C.F.R. § 3.303 (1998).
Upon review of the entire record, there is no evidence of
amyloid heart disease, amyloidosis or multiple myeloma until
many years after service. Additionally, to the extent that
his complications of CHF, COPD, renal disease, prostatism,
generalized tonic clonic seizure, pneumonia, respiratory
tract infections, pleural effusions, ventricular tachycardia,
severe esophagitis and chronic ulcer disease may have
contributed to his death, none are shown to have been
manifested until many years after service. The absence of
competent medical evidence that establishes a nexus between
the veteran's post- service disease processes which
contributed to his death and his active service is
dispositive in this case. Drs. Kalliath and Cavender have
provided opinion which correlates a causal relationship
between the alleged ionizing radiation exposure and the
subsequent development of multiple myeloma. However, as
shown above, the evidence of record does not establish that
the veteran was exposed to ionizing radiation during active
service. Thus, the Board finds that the record is devoid of
any probative evidence of a nexus, or causal relationship,
between the causes of the veteran's death and his period of
active service.
In the present case, the appellant contends that a causal
relationship, or nexus, exists between the veteran's causes
of death and active service. However, her lay statements,
speaking as they do to questions of medical diagnosis, are
insufficient to well ground the claim for service connection.
Grottveitt, 5 Vet.App. at 93. She is deemed competent to
describe the veteran's symptoms during his lifetime and prior
to his death, but not to make a medical diagnosis. Espiritu
v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, not all of
the Caluza elements are present, and the claim is not well
grounded.
Although VA does not have a statutory duty to assist a
claimant in developing facts pertinent to his claim where
that claim is not well grounded, VA may be obligated under 38
U.S.C.A. § 5103(a) to advise a claimant of evidence needed to
complete his or her application. Here, the RO attempted to
determine whether the veteran was exposed to ionizing
radiation during service by seeking information from Defense
Special Weapons Agency, however, no record of exposure has
been shown. Additionally, hospital admission records from
the Office of the Surgeon General's have been obtained and it
is clear from the record that the disease processes which
contributed to the veteran's death were not manifested until
many years after his separation from service. Thus, the
unavailability of the veteran's service medical records is
inconsequential. There is no information in the record which
suggests the existence of any evidence which arguably would
well ground the claim, and, therefore, VA has no further duty
under 38 U.S.C.A. § 5103(a).
Accordingly, the Board must deny the appellant's claim of
service connection for the cause of the veteran's death. See
Edenfield v. Brown, 8 Vet.App. 384 (1996) (en banc)
(disallowance of a claim as not well grounded amounts to a
disallowance of the claim on the merits based on
insufficiency of evidence).
ORDER
Plausible evidence of a service connection for cause of death
not having been submitted, the claim is denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals